CRIA - What Lies Ahead?

Michael has a great blog entry on CRIA and the widely reported resignation from it by six of the leading Canadian Indies, including the legendary Anthem, Aquarius, Nettwerk and True North labels, on the basis that:

“...it has become increasingly clear over the past few months that CRIA's position on several important music industry issues are not aligned with our best interests as independent recording companies"

"...we do not feel that we can remain members [of CRIA] given CRIA's decision to advocate solely on behalf of the four major foreign multi-national labels.”

The letter dated April 12, 2006 and sent to a large number of VIPs in Ottawa focusses on the recent CRTC submission but clearly suggests that there is more involved. In fairness to CRIA, it expresses appreciation for CRIA’s work “in many areas including copyright”.

But, speaking of copyright, there are troubles afoot for CRIA at the Copyright Board as well. CRIA, along with many others, has recently been fighting CSI (which is basically a coalition of music publishing trade associations) over the CSI’s proposed online music tariff. This is an incredibly complex saga that will overlap and intersect in strange and unpredictable ways with SOCAN’s decade long and still amorphous effort to license music on the Internet - but I digress.

In the CSI file, CRIA objected to its Class “B” members (i.e. the Canadian Indies) having to answer interrogatories - a position with which anyone familiar with Board hearings from an objector viewpoint would tend to sympathize with.

CRIA’s position was that “When it became clear that the interrogatory process was too onerous to involve its smaller members, CRIA withdrew on their behalf.”

The Board then did something quite interesting. Apparently out of concern for the Indies, it ordered CRIA to send notices to the Canadian Indies in the following language:

“CRIA recently opted to change the scope of its representation of its members’ interests in the forthcoming proceedings before the Copyright Board dealing with CSI’ s proposed tariff for the reproduction of musical works by online music services. Subsequently, the Board ordered CRIA to advise you of the following:
1) In these proceedings CRIA has chosen to act only on behalf of (name of each member that CRIA represents).
2) As a result, CRIA will not be allowed to advance any argument or lead any evidence that relates to your situation in particular, or to the situation of any other member of CRIA that CRIA does not represent in these proceedings generally.”

CRIA strongly objected to being told how to deal with its own members. It asked the Board to “reconsider” on the basis, inter alia, that:

the implication of the Order was that CRIA had acted in bad faith, deceitfully or otherwise inappropriately vis-à-vis its class B members, an implication that had no basis in the record;

The Board denied the request for reconsideration. CRIA has now launched a major judicial review application in the Federal Court of Appeal (A-593-05) and described the main issues as follows:

A. Did the Copyright Board breach the duty of fairness in issuing the Order?

B. Did the Copyright Board err in concluding that sections 66.7(1) and/or 66.71 of the Copyright Act give the Board the authority to issue an Order requiring a party to communicate with its members in a particular manner?

C. Did the Copyright Board err in ordering CRIA to send to each of its non-Class A members a notice advising them of CRIA’s decision to no longer represent its non-Class A members in the tariff proceedings?

CRIA’s judicial review memorandum is dated March 28, 2006 - and the responses should presumably follow 20 days later, which is to say on April 17, 2006.

So - with some of its main Canadian Indies gone, its polling and PR in disarray, and a public position on levies that reverses its twenty year old quest - what is happening?

This much we know about CRIA’s recent milestones:

• It still has the apparent support of its big four multinational members, Warner Music Group, Sony BMG, EMI Group, and Universal Music.
• These are the Canadian subs of the same big four that are under serious fire in the USA for alleged price fixing for online music and for alleged payola violations.
• CRIA’s Canadian component - small as it may be - is evaporating.
• CRIA’s support of Sam Bulte probably contributed to the former MP and potential Heritage Minister’s loss of her seat and likely her parliamentary career
• CRIA’s polling data has been inconsistent with its stated positions and has been ridiculed far and wide. CRIA has recently changed pollsters and PR firms.
• CRIA has fizzled and failed in its litigation campaign against Canadian file sharers and “infringers” (i.e. music lovers and customers) and P2P “weapons of mass distribution”, e.g. KaZaA. It badly lost round one of the file sharing litigation in 2004 not only because the law was against them (the very same levy law it fought so hard for since the early 80's) but because its evidence was so woefully inadequate. It was hearsay interspersed with fatal gaps. CRIA blamed the loss on its lawyer, Ron Dimock, who is by anybody’s measure one of Canada’s top IP litigators. He took the brief that was handed to him at the last minute by CRIA. He did as good as job as could possibly be done with the brief he was handed. I know because I opposed him.
• CRIA’s appeal to Federal Court of Appeal in 2005 was dismissed, although it tried to paint the result as a victory.
• I’ve lost count of the numerous prominent law firms and IP lawyers CRIA has retained in succession in the last couple of years on its various causes. At the rate they are going, they may soon have to call me ;-)
• CRIA provided disingenuous, incomplete and incorrect information in testimony to a Parliamentary Committee on March 9, 2004 about the WIPO treaties
• CRIA tried to get Michael Geist, its most vociferous, persistent and effective critic, fired from his Toronto Star gig.

What lies ahead?

CRIA’s current major active campaigns presumably include these:

• Canadian ratification of the 1996 WIPO treaties and super tough DMCA style DRM, TPM and ISP liability legislation. CRIA is by far the main “demandeur” on this front.
• The CRTC Commercial Radio Review
• The Copyright Board hearings on Private Copying for 2005-2007 in which CRIA is a major stakeholder in the CPCC, although CRIA wants to pull the plug on the levies. That is not likely to sit well with others in the CPCC tent. CPCC collects the unpopular private copying levies.
• The CSI and SOCAN internet hearings at the Copyright Board - in which music industry politics and internecine civil strife will continue to unfold in strange ways that also are likely to cause a lot of collateral damage and cost to those who are forced by the nature of the process not only to watch but to participate at considerable expense and inconvenience.

It will be interesting to see how Canadian officials, politicians, the CRTC, the Copyright Board and Courts will react to all of this.

Not to mention that real constituency that counts, which is the actual Canadian music industry itself and the millions of Canadians who actually love and support actual Canadian music.

Maybe Michael is right that we need to drop the “C” from CRIA. Or, they can just keep the acronym and change their name to the “Canadian Recording Industry of America”, as a prominent international movie industry lawyer/lobbyist said in a priceless Freudian slip.

HPK

PS - I should remind all, in case anyone doesn’t know, that I acted against CRIA in the file sharing litigation and continue to act against the CPCC, in which CRIA is still a major stakeholder, on the levy front. But, as always, I speak only for myself on this blog.